IN RE: GAUTAM KUMAR HADA Vs. STATE

JUDGEMENT

(1.) In this Revisional application, the Petitioners have challenged the Order No. 2 dated February 9, 1993, passed by Sri S. P. Dutta, learned District Judge at Alipore, South 24 -Parganas, in Miscellaneous Appeal No. 64 of 1993. The contentions of Mr. Dasgupta, learned senior Counsel appearing on behalf of the Petitioners, inter alia, are that the Petitioners filed Title Suit No. 36 of 1993 in the Second Court of the learned Munsif at Alipore, South 24 -Parganas, against the opposite parties, inter alia, for declaration, accounts of partnership firm and permanent injunction. The case as made out by the Petitioners in the plaint, inter alia, were, that the Petitioners, along with the opposite parties, were carrying on partnership business, inter alia, as financier and hire -purchaser in the name and style of 'Meenakshi Finance Corporation' and as iron and steel dealer under the trade name of 'Meenakshi Steel' having its registered office at 27. Ashutosh Chowdhury Avenue, Police Station Ballygunge, Calcutta -19 ; that it was agreed by and between the partners that the said partnership firm would be solely managed by the opposite party No. 1 and the Petitioners would not be responsible for any accounts and losses of the said partnership firm ; that the said partnership firm obtained from the father of Petitioners, a tenancy right in respect of the entire premises No. 27, Ashutosh Chowdhury Avenue, Calcutta -19, under the landlord Sri Sankari Nath Chowdhury of 6, Suburban Hospital Road, Calcutta -20, and by a separate memorandum of understanding, it was agreed by and between the parties, that two rooms situated in the western side of the first floor (near to puja -glwr), would belong to Sri G. R. Hada, father of the Petitioners and his family and the other two rooms in the first floor would belong to the opposite party No. 2 and his family, and in case the Petitioners' father of his family members were not in Calcutta. Those two rooms which were to be used by the Petitioners' father, would be used by the opposite party No. 1 and the rest of the house would have a common use; that in the first week of January 1993 the Petitioner No. 1 was approached by a third party and was told that the opposite parties were desirous of transferring the said tenancy right in favour of the said third party and the Petitioner No. 1 was requested to give his consent in the matter which, however, was refused by the Petitioner No. 1 ; that the Petitioner No. 1 then contacted the opposite party No. 1 and requested him not to transfer the said tenancy right to any person, but the opposite parties declined to accede to such request and, as such, the Petitioners were forced to file the above title suit, inter alia, for a declaration and injunction that the opposite parties had no right, title or interest to transfer the said tenancy right without the consent of the Petitioners.

(2.) In the said title suit, the Petitioners filed an application for temporary injunction for restraining the opposite parties from the disputed tenancy right and also from causing any obstruction to the free ingress and egress of the Petitioners in the suit premises No. 27, Ashutosh Chowdhury Avenue, Calcutta -19, and by the Order No. 3 dated February 2, 1993, the learned Munsif issued a notice upon the opposite parties to show cause as to why the said prayer for temporary injunction should not be granted, and passed an ad interim injunction in favour of the Petitioners. Against the said order, the opposite parties preferred the above -mentioned miscellaneous appeal, and also filed an application for stay of operation of the aforesaid order of the learned Munsif, and the learned District Judge by the impugned order granted an ad interim stay, which is the subject -matter of challenge in the present Revisional application.

(3.) Mr. Dasgupta contends, inter alia, that he lower appellate Court in the proper exercise of jurisdiction vested in him by law, ought not to have granted an ad interim order of stay, thereby practically disposing of the appeal itself at the initial stage, by granting relief to the opposite parties what they had prayed for in the appeal, and the proper cause for the learned District Judge should have been to hear out the appeal at an early date without granting any such ad interim stay. Mr. Dasgupta further contends that since the Petitioners had lodged a caveat in the lower appellate Court, the learned District Judge had acted illegally and with material irregularity in granting the ad interim order of stay without hearing the caveators.